DOCSLIB.ORG

Free-Speech-And-The-Law-Obscene-Publications.Pdf

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Free-Speech-And-The-Law-Obscene-Publications.Pdf Free Speech & The Law Obscene Publications Obscene Publications Free Speech & The Law This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exists for free speech and where the law currently permits restrictions. Cover image by Thomas Hawk (CC BY-NC 2.0) This guide was produced by Index on Censorship, in partnership with Clifford Chance. ​ ​ Free Speech & The Law - Obscene Publications Guide – Index on Censorship Table of contents Obscene publications offences explained 3 What does Article 10(2) of the European Convention on Human Rights say? 3 Overview of UK laws 7 The Obscene Publications Act 1959 7 What is “obscene”? 7 Offences 8 Update to the CPS guidance on obscenity 9 Defences under the Obscene Publications Act 1959 10 Theatres Act 1968 11 Indecent Displays (Control) Act 1981 12 Outraging public decency 12 Criminal Justice and Immigration Act 2008 13 Where can I find out more information about obscenity law? 14 Page 2 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Obscene publications offences explained It is nearly 300 years since bookseller Edmund Curll was convicted in 1727 on a ​ ​ charge of obscenity in an English court for his publication of the mildly pornographic Venus in the Cloister or The Nun in Her Smock. Obscenity was thereafter recognised as a crime under common law. Since then, the definition of obscenity has narrowed from the broad concept under common law of engendering “revulsion, disgust or outrage” (although this remains the definition of obscenity for the offence of outraging public decency) to the notoriously vague current definition under the Obscene ​ Publications Act 1959 of “tending to deprave and corrupt”. ​ Obscenity law is concerned with protecting “public morals” – it seeks to steer people away from immoral or criminal behaviour and vice. The European Court of Human ​ Rights (ECtHR) has recognised that convictions under the Obscene Publications Act ​ 1959 – which criminalises publishing “obscene” material – interfere with individuals’ rights to free expression under Article 10 of the European Convention on Human ​ Rights (ECHR). However, in the 1972 case of Richard Handyside v United Kingdom, ​ ​ ​ ​ the ECtHR acknowledged that prosecutions under the act were permissible under the ​ restrictions set out in Article 10(2) of the ECHR where freedom of expression can be ​ restricted to protect “morals in a democratic society.” ​ ​ What does Article 10(2) of the European Convention on Human Rights say? Article 10(2) says that the right to freedom of expression “carries with it duties and responsibilities”. Because of this, the right to free expression may be subject to restrictions and conditions that are necessary in a democratic society and are set out clearly in the law. To be valid, any restrictions must be for one or more of the following purposes: national security, public safety, territorial integrity, preventing crime or disorder, protecting health or morals, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary. Page 3 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Case Study: Richard Handyside and The Little Red Schoolbook The Richard Handyside case was about The Little Red Schoolbook. This was a ​ ​ book intended for teenagers written by two Danish authors and intended to be published in the UK by Handyside, the owner of publishing house Stage 1. It had chapters on education, learning, teachers, pupils and “the system”. However, it also had a section on sex, which contained sub-sections on masturbation, orgasm, intercourse and petting, contraceptives, wet dreams, menstruation, child molesters or “dirty old men”, pornography, homosexuality and impotence. There were also references to smoking pot and references to porn as “a harmless pleasure”. In March 1971, the Daily Mirror, The Sunday Times and The Daily Telegraph published accounts of the book’s contents, leading to a number of complaints to the Director of Public Prosecutions, who asked the police to investigate. Following a criminal trial, Handyside was convicted of possessing 1,208 obscene books for publication for gain. He was fined and the books were ordered to be destroyed. The question the ECtHR had to consider was whether Handyside’s criminal conviction (plus the fine and the destruction of the books) amounted to a breach of his Article 10 rights to freedom of expression. The court decided that, since there was no “uniform European conception of morals”, the authorities in the UK were better placed than the European judges to determine the need for acts such as the Obscene Publications Act. It also said the British judges were entitled, in the exercise of their discretion, to think that the Schoolbook “would have pernicious effects on the morals of many of the children and adolescents who would read it”. The court found no breach of Handyside’s Article 10 rights. However, the case did establish an important precedent because it established the ​ principle that “freedom of expression…is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population.” Page 4 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Case study: Obscene publications and the internet The case of R v Perrin (Stephane Laurent) 2002 established that the creation of a ​ ​ ​ ​ web page was sufficient to establish publication and that a jury only had to be satisfied that there was a likelihood of vulnerable persons seeing the obscene material. The prosecution did not have to demonstrate that such a person actually did or would see it. Pornographic content on a web page that has the tendency to deprave and corrupt the viewer would therefore be sufficient to establish criminal liability and the court found the in this instance did not violate the defendant's right to freedom of expression under Article 10 of the European Convention on Human Rights. However, subsequent cases have tested this assumption (see Case dropped against Girls Aloud blogger below). In recent years, there have been multiple and increased calls to abolish the Obscene Publications Act. Because prosecutions under the act require convincing a jury that a video, sound recording or image “tends to deprave or corrupt” those receiving it – a standard judged against prevailing moral standards – there have been many recent high-profile acquittals in cases where jurors have simply been unmoved by the potentially obscene material in front of them. Case study: Shocked then bored In 2012, Michael Peacock was unanimously acquitted by 12 members of a jury at ​ ​ Southwark Crown Court on six counts of publishing obscene articles likely to “deprave and corrupt”. He had sold hardcore gay pornography DVDs online from his flat in Brixton. The police saw adverts and operated an undercover purchase. They found six DVDs featuring hardcore pornography and Peacock was prosecuted. The jury was shown hours of footage from the DVDs. Peacock’s defence solicitor remarked that although the jury “were quite shocked initially, they started to look quite bored very quickly”. The jury returned a not-guilty verdict. Page 5 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Case study: Girls Aloud blogger In 2008, a case was dropped against a blogger charged with obscenity after he ​ ​ wrote an erotic story detailing the kidnap, sexual torture and murder of pop group Girls Aloud. A key part of the prosecution’s case against the blogger was that his post could be easily accessed by young Girls Aloud fans. However, shortly before the trial, an IT expert gave evidence that the blog could be found only by people specifically searching for it. On discovering this, the prosecution dropped the case and the judge issued a not-guilty verdict. While many of the obscenity laws created in the latter half of the 20th century remain in place, in recent years the risk of prosecution has reduced. Following the Peacock case, the Crown Prosecution Service (CPS) recently changed its guidance to narrow ​ ​ what it considers “obscene”. Consensual legal sexual acts between adults such as spanking, fisting, BDSM and female ejaculation are no longer considered obscene by prosecutors, and so people who distribute or sell videos or images of such acts will likely no longer be prosecuted under the Obscene Publications Act. Equally, the number of prosecutions and convictions secured under obscenity laws in England and Wales has dropped dramatically in recent years. For example, while in 1984 there were 429 successful convictions under the Obscene Publications Act 1959, in 2014 there were just 10. Page 6 of 14 Free Speech & The Law - Obscene Publications Guide – Index on Censorship Overview of UK laws The UK laws applicable to the broad area of obscenity include: ● Obscene Publications Act 1959 ● Obscene Publications Act 1964 ● Theatres Act 1968 ● The common law offence of outraging public decency ● Indecent Displays (Control) Act 1981 ● Video Recordings Act 1984 ● Protection of Children Act 1978 (please see the Child Protection Guide) ● Criminal Justice Act 1988 (Possession of indecent photograph of a child - please see Child Protection Guide) ● Broadcasting Act 1990 ● Postal Services Act 2000 ● Criminal Justice and Immigration Act 2008 (covering the definition of “extreme pornography”) Below we highlight the main offences that might concern freedom of expression and the law. The Obscene Publications Act 1959 The offence of publishing an obscene article, or possessing one for gain, is set out in the Obscene Publications Act 1959. This act states the legal test for obscenity to be ​ ​ applied to the offence and certain defences to the crime.
Load more

Recommended publications
  • Literature, the Law of Obscenity, and the Constitution William B
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1954 Literature, the Law of Obscenity, and the Constitution William B. Lockhart Robert C. McClure Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Lockhart, William B. and McClure, Robert C., "Literature, the Law of Obscenity, and the Constitution" (1954). Minnesota Law Review. 2546. https://scholarship.law.umn.edu/mlr/2546 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. MINNESOTA LAW REVIEW Journal of the State Bar Association Volume 38 March, 1954 No. 4 LITERATURE, THE LAW OF OBSCENITY, AND THE CONSTITUTION WILLIAm B. LOCKHART* AND ROBERT C. MCCLURE** Early in 1946 when Doubleday & Company, Inc., an old and very large and reputable publishing house,1 published Edmund Wilson's Memoirs of Hecate County, book reviewers and critics had a field day; for Edmund Wilson was then as now the nation's most distinguished literary critic, and this was his first book of fiction since I Was a Daisy, published in 1929.2 To Virgilia Peter- son in Commonweal the Memoirs was "a pathological joke," "a string of satiric stories which, in their aimlessly offensive vulgarity (aimless, unless the aim was in fact to offend) defy description." 3 Others went to the opposite extreme: Ralph Bates in the New York Times called it "a good, a distinguished book,"'4 and Time magazine said that "it was the first event of the year which can be described as 'literary,' " and that it was "pretty certainly the best contempor- ary chronicle, so far, of its place and period." 5 Most reviewers, *Professor of Law, University of Minnesota.
    [Show full text]
  • Age and Sexual Consent
    Per Se or Power? Age and Sexual Consent Joseph J. Fischel* ABSTRACT: Legal theorists, liberal philosophers, and feminist scholars have written extensively on questions surrounding consent and sexual consent, with particular attention paid to the sorts of conditions that validate or vitiate consent, and to whether or not consent is an adequate metric to determine ethical and legal conduct. So too, many have written on the historical construction of childhood, and how this concept has influenced contemporary legal culture and more broadly informed civil society and its social divisions. Far less has been written, however, on a potent point of contact between these two fields: age of consent laws governing sexual activity. Partially on account of this under-theorization, such statutes are often taken for granted as reflecting rather than creating distinctions between adults and youth, between consensual competency and incapacity, and between the time for innocence and the time for sex. In this Article, I argue for relatively modest reforms to contemporary age of consent statutes but propose a theoretic reconstruction of the principles that inform them. After briefly historicizing age of consent statutes in the United States (Part I), I assert that the concept of sexual autonomy ought to govern legal regulations concerning age, age difference, and sexual activity (Part II). A commitment to sexual autonomy portends a lowered age of sexual consent, decriminalization of sex between minors, heightened legal supervision focusing on age difference and relations of dependence, more robust standards of consent for sex between minors and between minors and adults, and greater attention to the ways concerns about age, age difference, and sex both reflect and displace more normatively apt questions around gender, gendered power and submission, and queer sexuality (Part III).
    [Show full text]
  • Millian Liberalism and Extreme Pornography
    Millian Liberalism and Extreme Pornography Nick Cowen King’s College London Abstract: How sexuality should be regulated in a liberal political community is an important, controversial theoretical and empirical question—as shown by the recent criminalization of possession of some adult pornography in the United Kingdom. Supporters of criminalization argue that Mill, often considered a staunch opponent of censorship, would support prohibition due to his feminist commitments. I argue that this account underestimates the strengths of the Millian account of private conduct and free expression, and the consistency of Millian anticensorship with feminist values. A Millian contextual defense of liberty, however, suggests several other policy approaches to addressing the harms of pornography. hatplacedoespornographyhaveinaliberal sexual penetration; acts that appear to threaten a person’s society?1 Williams (1979), in his role as life; acts that inflict serious harm on the breasts, geni- W chair of the British Home Office Committee talia, or anus; and acts of necrophilia and bestiality. While on Obscenity and Film Censorship, famously bound many images falling under this definition offend and dis- Mill’s harm principle to a defense of pornography, and turb people, liberal opponents are concerned that the Millian thought has been central to this debate ever prohibition includes fictional representations, in particu- since. Some feminist critics of pornography offer a new lar, depictions of common sexual fantasy scenarios (Joyal, pro-censorship Millian account, supported by Mill’s Cossette, and Lapierre 2015), as well as a range of sex acts commitments to women’s emancipation and aversion to that may appear subjectively dangerous or degrading, but humanity’s animalistic sexual appetites (McGlynn and are safe and frequently enjoyed when practiced between Rackley 2009; McGlynn and Ward 2014).
    [Show full text]
  • ESSAY: Eroticism, Obscenity, Pornography and Free Speech Nicholas Wolfson
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Brooklyn Law School: BrooklynWorks Brooklyn Law Review Volume 60 | Issue 3 Article 5 3-1-1994 ESSAY: Eroticism, Obscenity, Pornography and Free Speech Nicholas Wolfson Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Nicholas Wolfson, ESSAY: Eroticism, Obscenity, Pornography and Free Speech, 60 Brook. L. Rev. 1037 (1994). Available at: https://brooklynworks.brooklaw.edu/blr/vol60/iss3/5 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. ESSAY EROTICISM, OBSCENITY, PORNOGRAPHY AND FREE SPEECH Nicholas Wolfson* INTRODUCTION Modern society speaks about sex, Michel Foucault ob- serves, "ad infinitum, while exploiting it as the secret."' As he pointed out, we attempt to explain virtually everything about us in terms of sex. We 'bring [ourselves] almost entirely-our bodies, our minds our individuality, our history-under the sway of a logic of concupiscence and desire."2 Sexual depiction, in the forms modern society terms "por- nography" or "obscenity," is a multi-billion dollar industry.3 It is also the object of regulatory concern by the government and important movements in society.4 The debate about pornogra- phy begins with one fundamental question: what is it?5 The hotly disputed answers inevitably turn on sometimes violently contrasting notions of the good and evil life.6 Pornography is a running debate about issues deep in the human psyche, issues more fundamental than virtually all of the political topics that * Professor of Law, University of Connecticut School of Law.
    [Show full text]
  • Involuntariness, Obscenity, and the First Amendment
    NOTE CRIMINALIZATION IN CONTEXT: INVOLUNTARINESS, OBSCENITY, AND THE FIRST AMENDMENT Cynthia Barmore* “Revenge porn,” referring to the distribution of sexually explicit images without the consent of those featured, is a growing problem in the United States. New Jersey and California were the first states to criminalize the practice, but state legislatures around the country have been passing and considering similar laws in recent months. Proponents of legislation, however, are confronting critics who protest that the First Amendment precludes criminal liability for distributing lawfully acquired true material. This Note provides the first in-depth analysis of how obscenity law can and should be used to criminalize revenge porn within the boundaries of the First Amendment. While no state legislature has characterized revenge porn as ob- scenity, this Note argues they should because the obscenity context provides the greatest insulation from a First Amendment challenge. If drafted to prohibit ob- scenity, such laws would enable states to robustly and constitutionally criminalize revenge porn, even when the photographer is the person objecting to distribution or the distributor acts without intent to cause serious emotional distress. The hope is this Note will guide legislatures to draft constitutionally responsible legis- lation to combat revenge porn. INTRODUCTION....................................................................................................... 448 I. CRIMINAL AND CIVIL PENALTIES FOR REVENGE PORN....................................
    [Show full text]
  • Mexican Law on Obscenity D
    University of Miami Law School Institutional Repository University of Miami Inter-American Law Review 6-1-1975 Mexican Law on Obscenity D. Rangel Medina Follow this and additional works at: http://repository.law.miami.edu/umialr Part of the Foreign Law Commons Recommended Citation D. Rangel Medina, Mexican Law on Obscenity, 7 U. Miami Inter-Am. L. Rev. 337 (1975) Available at: http://repository.law.miami.edu/umialr/vol7/iss2/5 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter- American Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. MEXICAN LAW ON OBSCENITY DAVID RANGEL MEDINA* STATUTORY ENACTMENTS Among individual guarantees, the political Constitution of the United States of Mexico recognizes the free expression of ideas and freedom of publication.1 However, this freedom is not without restrictions; it has some limitations. Thus, Art. 6 establishes that the expression of ideas shall not be subject to any judicial or administrative inquiry except in the event that it attacks morality,, infringes the rights of others, provokes a crime, or disturbs the public order. Art. 7 provides that freedom of expression or publication in connection with any subject is inviolable, adding that no law nor authority may establish preliminary censorship nor restrict freedom of publication. This freedom has limits, among others, respect for morality. The basic principles which limit freedom of expression and freedom of publication established by the Constitution are detailed and clarified in the Law of Publications (1917),2 regulatory of Art.
    [Show full text]
  • Sexercising Our Opinion on Porn: a Virtual Discussion
    Psychology & Sexuality ISSN: 1941-9899 (Print) 1941-9902 (Online) Journal homepage: http://www.tandfonline.com/loi/rpse20 Sexercising our opinion on porn: a virtual discussion Elly-Jean Nielsen & Mark Kiss To cite this article: Elly-Jean Nielsen & Mark Kiss (2015) Sexercising our opinion on porn: a virtual discussion, Psychology & Sexuality, 6:1, 118-139, DOI: 10.1080/19419899.2014.984518 To link to this article: https://doi.org/10.1080/19419899.2014.984518 Published online: 22 Dec 2014. Submit your article to this journal Article views: 130 View Crossmark data Citing articles: 4 View citing articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=rpse20 Psychology & Sexuality, 2015 Vol.6,No.1,118–139, http://dx.doi.org/10.1080/19419899.2014.984518 Sexercising our opinion on porn: a virtual discussion Elly-Jean Nielsen* and Mark Kiss Department of Psychology, University of Saskatchewan, Saskatoon, SK, Canada (Received 1 May 2014; accepted 11 July 2014) A variety of pressing questions on the current topics and trends in gay male porno- graphy were sent out to the contributors of this special issue. The answers provided were then collated into a ‘virtual’ discussion. In a brief concluding section, the contributors’ answers are reflected upon holistically in the hopes of shedding light on the changing face of gay male pornography. Keywords: gay male pornography; gay male culture; bareback sex; pornography It is safe to say that gay male pornography has changed. Gone are the brick and mortar adult video stores with wall-to-wall shelves of pornographic DVDs and Blu-rays for rental and sale.
    [Show full text]
  • In the Supreme Court of Iowa
    IN THE SUPREME COURT OF IOWA No. 10–0898 Filed July 27, 2012 MALL REAL ESTATE, L.L.C., an Iowa Limited Liability Company, Appellant, vs. CITY OF HAMBURG, an Iowa Municipal Corporation, Appellee. Appeal from the Iowa District Court for Fremont County, Greg W. Steensland, Judge. An establishment appeals an order denying its request for an injunction enjoining a city from enforcing an ordinance regulating nude dancing. REVERSED AND REMANDED WITH INSTRUCTIONS. W. Andrew McCullough, Midvale, Utah, and Brian B. Vakulskas and Daniel P. Vakulskas of Vakulskas Law Firm, Sioux City, for appellant. Raymond R. Aranza of Scheldrup Blades Schrock Smith Aranza, P.C., Cedar Rapids, for appellee. 2 WIGGINS, Justice. The operator of an establishment offering nude and seminude dance performances sought an injunction restraining a city from enforcing its ordinance regulating nude and seminude dancing. The district court found that state law did not preempt the ordinance and that the ordinance was constitutional. On appeal, we find that state law preempts enforcement of the ordinance and that it is unenforceable against the establishment. Accordingly, we reverse the judgment of the district court and remand the case with instructions to the court to enter an order enjoining the city from enforcing its ordinance against the establishment. I. Background Facts and Proceedings. On December 8, 2008, the Hamburg city council passed chapter 48 of its city code. The ordinance, known as the “Sexually Oriented Business Ordinance,” contains provisions relating to licensing and zoning and imposes a range of regulations upon sexually oriented businesses. The stated purpose of the ordinance is to “regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses.” Hamburg, Iowa, Code § 48.010.01 (Dec.
    [Show full text]
  • Sex Is Less Offensive Than Violence: a Call to Update Obscenity Jurisprudence Rachel Elizabeth Simon
    Seton Hall University eRepository @ Seton Hall Law School Student Scholarship Seton Hall Law 5-1-2014 Sex Is Less Offensive Than Violence: A Call To Update Obscenity Jurisprudence Rachel Elizabeth Simon Follow this and additional works at: https://scholarship.shu.edu/student_scholarship Recommended Citation Simon, Rachel Elizabeth, "Sex Is Less Offensive Than Violence: A Call To Update Obscenity Jurisprudence" (2014). Law School Student Scholarship. 575. https://scholarship.shu.edu/student_scholarship/575 SEX IS LESS OFFENSIVE THAN VIOLENCE: A CALL TO UPDATE OBSCENITY JURISPRUDENCE TABLE OF CONTENTS I. Introduction ............................................................................................................................... 2 II. The State of Obscenity ........................................................................................................... 2 A. The “Inherent Morality” Standard ................................................................................................. 2 B. Sex and Violence Under the “Inherent Morality” Standard ......................................................... 5 1. Regulation of Sexual Expression .................................................................................................... 6 2. Why Offensiveness vis-à-vis Sex Is Not Unconstitutionally Vague ............................................. 11 3. Regulation of Violent Expression ................................................................................................. 13 4. Why Violent Expression
    [Show full text]
  • R V Peacock: Landmark Trial Redefines Obscenity Law
    Graduate Journal of Social GJSS Science R v Peacock: Landmark Trial Redefines Obscenity Law Alex Antoniou The acquittal of Michael Peacock, who was charged with distributing DVDs featuring male fisting, urination and sado-masochism, has cast doubt on the English obscenity law. The ‘deprave and corrupt’ test under the Obscene Publications Act 1959 has been controversial since its inception in England and Wales. One of the strengths of the 1959 Act is its ability for juries to rec- ognise changing moral standards in accordance with modern social values. While such content has been found in the past to be capable of debasing and destroying the moral purity of its likely audience, the question put before the jury in R v Peacock was if this is the case nowadays. For some, the not guilty verdict represents a victory for freedom of expression and the end of an era; for others, moral degeneration. This article provides a more perceptive view of the implications of the Peacock outcome. It argues that we have not seen the demise of obscenity yet. On the contrary, more insidious obscenity provi- sions have replaced the ‘archaic’ 1959 Act and more censorship laws with real teeth are likely to be just over the horizon. Keywords: Obscenity, pornography, fisting, urination, sado-masochism Introduction cated on 6 January 2012, when a The Obscene Publications Act unanimous jury in a landmark ob- 1959 (OPA or the 1959 Act hereaf- scenity trial returned a not guilty ver- ter1) passed over half a century ago, dict. was quite recently wielded against This paper builds on an interpre- Michael Peacock, a male escort tative and qualitative analysis of the professionally known as ‘sleazy principal legislation for the regula- Michael,’ who had been accused tion of sexually explicit content of of distributing obscene DVDs for any kind in England and Wales with gain.
    [Show full text]
  • The Protection of Literature Under English Law in a Postmodern
    The Protection ofLiterature under English Law in a Postmodern Age Dr Dawn Watkins Introduction This paper calls into question the practice of affording special protection to works of literature under English Law, with particular reference to the Obscene Publications Act 1959 COPA 1959') and the Human Rights Act 1998 ('HRA 1998'). Such protection appears to have been based on an assumption that works possessing literary merit are for the 'public good'l and so they should receive treatment that differs from that which might be afforded to other more prosaic forms of writing. This paper challenges the assumption that all literature is necessarily meritorious and contends that literature has not always enjoyed such an elevated status. The late eighteenth century is identified as a key period in history which witnessed the birth of the notion of literature being a particularly special form of craft, separate from and more important than other forms of written communication. The elevation in the status of literature from then until the twentieth century is outlined in order to demonstrate that the notion of literature as a kind of moral champion is a relatively modern one. Parliamentary debate leading up to the Obscene Publications Act 1857 ('OPA 1857') demonstrates that at this stage the idea that literature could also be obscene was an anathema. However a century later the inclusion of the 'public good' defence for works of literary merit in the OPA 1959 was based on the premise that the publication of literature was for the public benefit, even where it was also apparently obscene.
    [Show full text]
  • Art and the Law a Guide to the Legal Framework Impacting on Artistic Freedom of Expression CHILD PROTECTION COUNTER TERRORISM PUBLIC ORDER RACE and RELIGION
    Art and the Law A guide to the legal framework impacting on artistic freedom of expression CHILD PROTECTION COUNTER TERRORISM PUBLIC ORDER RACE AND RELIGION OBSCENE PUBLICATIONS These information packs have been produced by Vivarta in partnership with Index on Censorship and Bindmans LLP. Acknowledgements The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street, Matrix Chambers and Brick Court. The packs have been designed and printed by Clifford Chance, Greg Thompson, Design Specialist, Document Production Unit Art & the Law - Obscene Publications - A Guide to the Legal Framework Impacting on Artistic Freedom of Expression is published by Vivarta. This publication is supported using public funding by the National Lottery through Arts Council England. It is licensed under Creative Commons CC BY 2.0, excepting where copyright is assigned elsewhere and marked accordingly. ISBN: 978- 0- 9933345-6-6 Vivarta is a digital media news lab and advocate for free expression rights. As vivarta.org we help defend free expression through investigative reporting and creative advocacy. As vivarta.com we apply new digital media, security and situational analysis tools to support this work. The Free Word Centre, 60 Farringdon Road, London EC1R 3GA www.vivarta.org Five areas of law covered in this series of information packs Obscene Publications Child Protection Counter Terrorism Public Order Race and Religion They can all be downloaded from www.indexoncensorship.org/artandoffence or order a print copy from [email protected] – postage will be charged. Editors’ note As with the other documents in this series, this booklet is intended as an introduction to the legal framework that underpins the qualified right of freedom of expression enjoyed by artists and arts organisations in the UK.
    [Show full text]